Sexual assault cases are treated very seriously and can occur anywhere, from the workplace to households. When you are charged with a sexual assault case, consider getting criminal defence lawyers to represent your side of the story in a court of law.
Sexual assault can be defined as the intentional touching of another sexually without their consent. This includes all forms of sexual touching except penetration.
A person who commits sexual assault can be sentenced to 10 years. There are four elements that the prosecution will need to prove, which will be explained in detail below.
The Touch Must Have Been Intentional
The touch must have been a conscious, deliberate act. The contact can even be indirect, like in the following instances:
- Through clothing;
- Through an object; or
- Causing another person or animal to touch the complainant;
Any touch will satisfy this element. The contact can be done through any part of the body.
The Touch Was Sexual in Nature
The law provides some guidance for a touch that is sexual - such as;
- If the complainant is touched on their buttocks, breasts, genital or anal region;
- The contact can also be sexual if the person doing the touching gets some sort of sexual gratification from the act;
- Circumstances surrounding the touch are also taken into account;
If you are unsure whether a touch was sexual, contact a criminal defence lawyer to give you the guidance you need.
The Complainant Did Not Consent to the Touching
It must be proven that the complainant did not consent when the touch happened. There are various instances where under the law, you are not consenting, namely:
- If you are asleep, unconscious, or so intoxicated that you cannot freely agree;
- Where you do not understand that the act is sexual;
- Where you mistake the sexual nature of the action or error the person for someone else;
- If you mistakenly think the action is for medical or cleanliness purposes.
In other words, the complainant did not freely agree to be touched at the time.
The Reasonable Belief That the Complainant Did Not Consent to the Touching
To prove this element, the prosecution can show any of the following scenarios:
- At the time of the act, the accused did not believe that the complainant was consenting;
- The accused gave no thought as to whether the complainant was consenting;
- The accused believed that the complainant was consenting, but the belief was not reasonable
Proof of any of the above, beyond a reasonable doubt, will fulfil this element.
The exception to Sexual Assault
Specific procedures require touching a sexual area for medical or hygienic purposes. This will not be sexual assault if done in good faith.
Consent as a Defence
If the court finds that the accused was under a reasonable belief that the complainant was consenting, it will make a judgement of not guilty. The court will take all circumstances of the particular case into account. It does this to determine whether the belief was reasonable in the circumstances.
If the belief is based on general assumptions, the court will look at what the community would reasonably expect of the accused in the circumstances.
Intoxication of the accused has no effect on the outcome of a case. According to the law, the assessment will be done as if the accused were sober.
Criminal Defence Lawyers Can Help
If you are a victim of or have been charged with sexual assault, you may need to consult with an experienced criminal defence lawyer. These professionals have the knowledge and experience to help you understand your rights and help get the best outcome for your case.
